This matter is before the Authority on exceptions to the award of
Arbitrator Robert H. Kubie. The Arbitrator found that the United States
Department of Labor, Occupational Safety and Health Administration (the Agency)
violated the parties' collective bargaining agreement by using a court reporter
to make a verbatim transcript of an employee's oral answer to a proposed
adverse action.

The Agency filed exceptions under section 7122(a) of the Federal
Service Labor-Management Relations Statute (the Statute) and part 2425 of the
Authority's Rules and Regulations. The National Council of Field Labor Locals
(the Union) did not file an opposition to the exceptions.

We conclude that the Agency has failed to establish that the award is
deficient because: (1) the award does not draw its essence from the parties'
collective bargaining agreement; (2) the award is contrary to section
7106(b)(1) of the Statute; or (3) the Arbitrator exceeded his authority by
ruling on a negotiability matter. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

A grievance was filed by the Union and submitted to arbitration which
disputed the Agency's use of a court reporter to keep a verbatim stenographic
transcript of an employee's oral answer to a proposed adverse action. The Union
claimed that the Agency's use of the court reporter violated the parties'
collective bargaining agreement.

The Arbitrator sustained the grievance. The Arbitrator noted that
Article 14, Section 2 of the parties' collective bargaining agreement pertained
to proposed adverse actions and the employee's right to respond orally and in
writing. The Arbitrator found that the Agency's use of a court reporter
violated the collective bargaining agreement. He concluded that the Agency was
precluded by Article 14 of the agreement from using a court reporter to keep a
verbatim stenographic transcript of an employee's oral answer to a proposed
adverse action.

III. Exceptions

The Agency contends that the award is deficient because: (1) the award
does not draw its essence from the parties' collective bargaining agreement;
(2) the award is contrary to section 7106(b)(1) of the Statute; and (3) the
Arbitrator exceeded his authority by ruling on a negotiability matter.

The Agency contends that the award fails to draw its essence from the
collective bargaining agreement because Article 14, Section 2 of the agreement
does not address the use of court reporters in the oral answer stage of adverse
action proceedings. The Agency argues that the award is deficient because the
Arbitrator did not interpret Article 14, Section 2. The Agency maintains that
the Arbitrator amended the agreement to impose a prohibition not provided in
it.

The Agency also notes that under 5 U.S.C. § 7513(b), an employee
against whom an adverse action is proposed is entitled to advance written
notice of the action and a reasonable period of time in which to answer orally
and in writing. The Agency further states that under 5 U.S.C. § 7513(e)
and 5 C.F.R. § 752.406, the agency must maintain a summary of the
employee's oral answer. The Agency argues that how an employee's oral answer is
to be summarized concerns management's right to determine the technology,
methods, and means of performing work under section 7106(b)(1) of the Statute.
Although the Agency acknowledges that it could have bargained over this matter,
the Agency maintains that it never elected to bargain on how the oral answer to
a proposed adverse action would be summarized. The Agency claims that its
election not to bargain is clear from Article 14, Section 2 of the collective
bargaining agreement because that section is silent on the matter of how the
oral answer is to be summarized. Therefore, the Agency contends that the award
is contrary to section 7106(b)(1) of the Statute because the award conflicts
with its right to determine the technology, methods, and means of performing
work.

The Agency also argues that the extent to which the use of a court
reporter at an oral answer meeting is within the duty to bargain is a matter
for determination by the Authority alone. The Agency claims that the Arbitrator
ruled on a negotiability issue and found the use of a court reporter at an oral
answer to be within the duty to bargain. Therefore, the Agency contends that
the award is deficient because the Arbitrator exceeded his authority.

IV. Discussion

We conclude that the Agency has not established that the Arbitrator's
award is deficient on any of the grounds set forth in section 7122(a) of the
Statute. The Agency has failed to establish that the award is contrary to any
law, rule, or regulation or that the award is deficient on any other grounds
similar to those applied by Federal courts in private sector labor relations
cases.

A. Essence of the Collective Bargaining Agreement

The Agency fails to establish that the award does not draw its essence
from the collective bargaining agreement. In order for an award to be found
deficient as failing to draw its essence from the collective bargaining
agreement, it must be established that the award: (1) is so unfounded in reason
and fact and so unconnected with the wording and purposes of the collective
bargaining agreement as to "manifest an infidelity to the obligation of the
arbitrator"; or (2) does not represent a plausible interpretation of the
agreement; or (3) cannot in any rational way be derived from the agreement or
evidences a manifest disregard of the agreement. For example, United
States Army Missile Materiel Readiness Command (USAMIRCOM) and American
Federation of Government Employees, Local 1858, AFL-CIO, 2 FLRA 432, 437
(1980).

These tests and the private sector cases from which they are derived
make it clear that an arbitrator's award will not be found to fail to draw its
essence from the agreement merely because a party believes that the arbitrator
misinterpreted the agreement. Department of Health and Human Services,
Social Security Administration, Louisville, Kentucky District and National
Federation of Federal Employees, Local 1790, 10 FLRA 436, 437 (1982). The
question of the interpretation of the collective bargaining agreement is a
question solely for the arbitrator because it is the arbitrator's construction
of the agreement for which the parties have bargained. Id. at 437;
Paperworkers v. Misco, Inc., 484 U.S. 29, 38 (1987) (Misco) (as
long as an arbitrator is even arguably construing the collective bargaining
agreement, that a court is convinced that the arbitrator committed serious
error does not suffice to find the award deficient).

The Arbitrator's conclusion that Article 14, Section 2 of the
collective bargaining agreement prohibited the Agency from using a court
reporter to record an employee's oral answer to a proposed adverse action
constituted his interpretation and application of the agreement. The Agency's
argument that the Arbitrator imposed a prohibition not provided by the
agreement does not establish that the award fails to draw its essence from the
collective bargaining agreement under any of the tests recognized by the
Authority.

Unlike the awards which the Authority has found deficient because they
failed to draw their essence from the collective bargaining agreement, the
Agency fails to establish that the Arbitrator's interpretation of Article 14,
Section 2 conflicts with express provisions of the agreement. SeeAmerican Federation of Government Employees, Local 547 and Tampa Veterans
Administration Hospital, 19 FLRA 725 (1985); Overseas Education
Association and Office of Dependents Schools, Department of Defense, 4 FLRA
98 (1980). Instead, the Agency's argument constitutes mere disagreement with
the Arbitrator's interpretation and application of the agreement and an attempt
to have its interpretation of the agreement substituted for that of the
Arbitrator. Disagreement with an arbitrator's interpretation and application of
a collective bargaining agreement provides no basis for finding that the award
does not draw its essence from the agreement or for finding that the award is
otherwise deficient under the Statute. See, for example,
Department of Health and Human Services, Social Security Administration and
American Federation of Government Employees, AFL-CIO, 32 FLRA 79, 88 (1988)
(that the agency or the Authority may have interpreted the agreement
differently provides no basis for finding the award deficient; the question of
the interpretation of the collective bargaining agreement was a question solely
for the arbitrator because it was the arbitrator's construction of the
agreement for which the parties bargained); Misco, 484 U.S. at
37-38.

B. Technology, Methods, and Means of Performing Work

The parties negotiated a provision--Article 14, Section 2--pertaining
to an employee's right to respond orally and in writing to proposed adverse
actions. The Arbitrator determined that the provision precluded the Agency from
using a court reporter to keep a verbatim transcript of an employee's oral
answer to a proposed adverse action. The Agency argues that (1) the method by
which an employee's oral answer to a proposed adverse action is summarized
constitutes the "technology, methods and means of performing its legal duties";
and (2) it did not "surrender, waive, or nullify" its right to determine the
technology, methods, and means of performing its legal duties under section
7106(b)(1) of the Statute. Agency's Exceptions at 3.

For the following reasons, we reject the Agency's assertion that the
award is deficient because it conflicts with the Agency's right to determine
the technology, methods, and means of performing work under section 7106(b)(1)
of the Statute.

Section 7106(b)(1) provides that nothing in section 7106 shall preclude
an agency and a labor organization from negotiating "at the election of the
agency," on, among other things, the "technology, methods, and means of
performing work[.]" Consistent with section 7106(b)(1), an agency may elect to
bargain on and agree to provisions in a collective bargaining agreement which
determine the technology, methods, or means of performing the agency's work.

An agency may withdraw from bargaining on a matter within the coverage
of section 7106(b)(1) prior to reaching final agreement on the matter.
National Association of Government Employees, Local R4-75 and U.S.
Department of the Interior, National Park Service, Blue Ridge Parkway, 24
FLRA 56, 61 (1986). However, once a provision which concerns matters which are
covered by section 7106(b)(1) is included in a collective bargaining agreement,
the provision is enforceable through grievance arbitration. See, for
example, Bureau of Engraving and Printing, Department of the Treasury
and Washington Plate Printers Union, Local No. 2, International Plate Printers,
Die Stampers and Engravers, 29 FLRA 467 (1987); Local 1917, American
Federation of Government Employees and United States Immigration and
Naturalization Service, Eastern Region, 13 FLRA 77 (1983).

It is unnecessary for us to decide whether Article 14, Section 2 of the
parties' collective bargaining agreement concerns the technology, methods, or
means of performing the Agency's work under section 7106(b)(1). Even if Article
14, Section 2 determines the technology, methods, or means of performing work,
the provision was negotiable at the Agency's election. Since the provision was
negotiable and was included in the parties' collective bargaining agreement, it
is enforceable.

The Agency's argument that it never bargained over how an employee's
oral answer to a proposed adverse action is to be summarized provides no basis
for finding the award contrary to section 7106(b)(1). By arguing that Article
14, Section 2 does not evidence an express election to bargain over how an
employee's oral answer is to be summarized, the Agency is merely disagreeing
with the Arbitrator's conclusion that Article 14, Section 2 precluded the use
of a court reporter. Disagreement with the Arbitrator's interpretation and
application of a collective bargaining agreement provides no basis for finding
the award deficient. SeeNational Treasury Employees Union and U.S.
Customs Service, 18 FLRA 780 (1985) (argument that arbitrator's award
conflicted with section 7106(b)(1) provided no basis for finding the award
deficient because the exception constituted nothing more than disagreement with
the arbitrator's interpretation of the agreement); American Federation of
Government Employees, AFL-CIO and Equal Employment Opportunity Commission,
15 FLRA 283 (1984) (argument that collective bargaining agreement fails to
clearly evidence an election by the agency to bargain over a permissive subject
of bargaining constitutes nothing more than disagreement with the arbitrator's
interpretation and application of the agreement and provides no basis for
finding the award deficient).

C. Exceeded Authority

Finally, the Agency fails to establish that the Arbitrator exceeded his
authority by ruling on a negotiability issue which must be resolved by the
Authority alone. The matter submitted to arbitration concerned a grievance over
whether the Agency violated the parties' collective bargaining agreement by
using a court reporter to record an employee's oral answer to a proposed
adverse action. Th